EN BANC

G.R. No. L-61388 April 20, 1983

IN THE ISSUANCE OF THE WRIT OF HABEAS CORPUS FOR DR. AURORA PARONG,
NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS
SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG,
LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ. JR., JUANITO GRANADA and
TOM VASQUEZ. JOSEFINA GARCIA-PADILLA, petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN, FABIAN C. VER, GEN. FIDEL V. RAMOS, and FIDEL V.
RAMOS, and LT. COL. MIGUEL CORONEL, respondents.

Lorenzo M. Tanada, Jose W. Diokno, Joker P. Arroyo, Efren M Mercado and Alexander Padilla for
petitioner.

The Solicitor General for respondents.

DE CASTRO, J.:

Petition for a writ of habeas corpus and mandamus seeking the following relief:

WHEREFORE, petitioners pray this Honorable Court:

1. To immediately issue a writ of habeas corpus directing respondents to appear and

produce the bodies of Dr. AURORA PARONG, NORBERTO PORTUGUESE, SABINO
PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA,
ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG, LETTY BALLOGAN,
BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM
VASQUEZ, forthwith before this Honorable Court and to make due return of the writ
therewith;

2. To issue, in addition or in the alternative to the writ of habeas corpus, a writ of

mandamus compelling the respondents to disclose the petitioners' present place of
detention and to order the respondents to allow counsel and relatives to visit and confer
with the petitioners;

3. Pending the determination of the legality of their continued detention, to forthwith

release the detainees on bail upon such terms and conditions as the Court may fix, and
after hearing, to order petitioners' immediate release; and

4. To grant petitioners such other and further relief as may be deemed just and
equitable in the premises.

The records show that nine (9) of the fourteen (14) detainees herein were arrested on July 6, 1982 at
about 1:45 p.m. when three (3) teams of the PC/INP of Bayombong, Nueva Viscaya led by Lt. Col.
Coronel, lst Lt. de Guzman and lst Lt. Baria, after securing a Search Warrant No. S-82 issued by
Judge Sofronio Sayo of the Court of First Instance of Nueva Viscaya conducted a raid at the
residence of Dra. Aurora Parong. Apprehended during the said raid were Dra. Aurora Parong,
Benjamin Pineda, Sabino Padilla, Francisco Divinagracia, Zenaida Mallari, Letty Ballogan, Norberto
Portuguese, and Mariano Soriano who were then having a conference in the dining room of Dra.
Parong's residence which had been doing on since 10:00 a.m. of that same day.

The other four (4) detainees herein, namely: Imelda de los Santos, Eufronio Ortiz, Jr., Juanita
Granada, and Bienvenida Garcia, were arrested on the following day, July 7, 1982 by the same PC
teams.

On July 15, 1982, Tom Vasquez was arrested, and his Volkswagen car, bearing Plate No. DAP 347,
was seized by the PC authorities.

The herein fourteen (14) detainees (hereafter referred to sometimes as petitioners) were all detained
at the PC/INP Command Headquarters, Bayombong, Nueva Vizcaya from July 6, 1982 until their
transfer on the morning of August 10, 1982 to an undisclosed place reportedly to Camp Crame,
Quezon City, to Echague, Isabela, and to Tuguegarao, Cagayan.

Hence, this petition for the writ of habeas corpus and mandamus filed by Josefina Garcia-Padilla,
mother of detained petitioner Sabino G. Padilla, Jr. on August 13, 1982. The mandamus aspect of the
instant petition has, however, become moot and academic, and whereabouts of petitioners having
already become known to petitioner Josefina Garcia-Padilla.

It is alleged in the petition that the arrest of petitioners was patently unlawful and illegal since it was
effected without any warrant of arrest; that the PC/INP raiding team which made the arrest were only
armed with a search warrant (No. 3-82) issued by Judge Sofronio G. Sayo of the Court of First
Instance of Nueva Viscaya, and nowhere in said warrant was authority given to make arrests, much
less detention; that the search warrant which authorized respondents to seize "subversive
documents, firearms of assorted calibers, medicine and other subversive paraphernalia" in the house
and clinic of Dra. Aurora Parong was a roving and general warrant and is, therefore, illegal per se
because it does not state specifically the things that are to be seized (Stonehill vs. Diokno, 20 SCRA
383); that no criminal charges have as of yet been filed against any of the detainees; that the fourteen
(14) detainees were initially held at the PC/INP Command in Bayombong, Nueva Viscaya from July 6
up to August 10, 1982, but were subsequently transferred by helicopter in the morning of August 10,
1982 to a place or safehouse known only to respondents; that there is no judgment, decree, decision
or order from a court of law which would validate the continued detention of the petitioner; that while it
is true that a purported telegram stating the issuance of a Presidential Commitment Order (PCO) was
shown to the detainees on or about July 11 and 12, 1982, but counsel and the detainees have not yet
been given a copy of such PCO nor notified of its contents, raising a doubt whether such commitment
order has in fact been issued.

It is further alleged that respondents are denying the detainees their constitutional right to counsel,
averring that the detainees were allowed regular visits by counsel and relatives during their period of
detention from July 6 to August 10, 1982 at the PC/INP Command in Bayombong, Nueva Viscaya;
however, when a certain Major Cristobal and Lt. Marcos (alleged to be from the Camp Crame
Intelligence Units) took full control of the investigation, counsels were allowed to visit only on
weekends; that when the detainees were transferred on August 10, 1982 to a place known only to
respondents, the detainees' counsels and relatives were not notified, raising the apprehension that
petitioners' constitutional rights to silence, to counsel and against self- incrimination are being
violated; that counsels have tried to locate if the detainees were taken to Camp Crame or Camp Bago
Bantay but to no avail; that Major Forondo of the PC Command in Nueva Viscaya informed Mrs.
Josefina Padilla that the detainees were transferred to Tuguegarao, Cagayan, others to Echague,
Isabela; that there seems to be a deliberate and concerted effort by respondents to conceal from
counsel and relatives the detainees' place of detention, raising the apprehension that respondents
are using force, violence, threat, intimidation and other means which vitiate free will to obtain
confession and statements from the detainees in violation of their constitutional rights.

In the resolution of this Court en banc dated August 17, 1982, the writ of habeas corpus was issued
and respondents were required to make a return of the writ. Hearing on the petition was set on
August 26, 1982.

In the return to the writ filed on August 23, 1982. respondents, through the Solicitor General, alleged,
to wit:

I. AS TO HABEAS CORPUS

1. The detainees mentioned in the petition, with the exception of Tom Vasquez who was
temporarily released on July 17, 1982, after his arrest on July 15, 1982, are all being
detained by virtue of a Presidential Commitment Order (PCO) issued on July 12, 1982,
pursuant to LOI No. 1211 dated March 9, 1982, in relation to Presidential Proclamation
No. 2045 dated January 17, 1981. The said PCO was issued by President Ferdinand E.
Marcos for violation of P.D. No. 885. ...

2. The corresponding charges against the said detainees have been filed in court and
before the Acting Provincial Fiscal of Nueva Viscaya where they are pleading. A warrant
of arrest against detainee Dra. Aurora Parong was issued on August 4, 1982, by the
Municipal Court of Bayombong, for illegal possession of firearm and ammunition. ...

II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS

3. The persons named in the above-mentioned Presidential Commitment Order were

arrested and are being detained for offenses with respect to which under Proclamation
No. 2045, the privilege of the writ of habeas corpus continues to be suspended, thus:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President/Prime

Minister of the Philippines, by virtue of the powers vested in me by the
Constitution, do hereby revoke Proclamation No. 1081 (Proclaiming a
state of Martial Law in the Philippines) and Proclamation No. 1104
(Declaring the Continuation of Martial Law) and proclaim the termination of
the state of martial law throughout the Philippines; Provided, that the call
to the Armed Forces of the Philippines to prevent or suppress lawless
violence, insurrection, rebellion and subversion shall continue to be in
force and effect; and Provided that in the two autonomous regions in
Mindanao, upon the request of the residents therein, the suspension of the
privilege of the writ of habeas corpus shag continue; and in all other
places the suspension of the privilege of the writ shall also continue with
respect to persons at present detained as well as others who may
hereafter be similarly detained for the crimes of insurrection or rebellion,
subversion, conspiracy or proposals to commit such crimes, and for all
other crimes and offenses committed by them in furtherance or on the
occasion thereof, or incident thereto, or in connection
therewith. (Emphasis supplied)

The privilege of the writ of habeas corpus is unavailing as to them. Courts cannot
inquire into the validity and cause of their arrest and detention.
 4. The power of the President in an emergency, such as that which necessitated the
continued suspension of the privilege of the writ of habeas corpus, to order the
detention of persons believed engaged in crimes related to national security is
recognized. (Aquino vs. Enrile, 59 SCRA 83; Luneta, et al. vs. Special Military
Commission, No. 1, et al., 102 SCRA 56).

5. In the instant petition, petitioner Josefina Garcia-Padilla does not appear to have
been authorized by the thirteen (13) other detainees to represent them in the case at
bar."

Accordingly, the petition was duly heard on August 26, 1982. After hearing, the Court issued the
following resolution, to wit:

G.R. No. 61388 (In the Matter of the Petition for the Insurance of the Writ of Habeas
Corpus of Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis
Divinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano
Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr., Juanito
Granada and Tom Vasquez; Josefina Garcia-Padilla vs. Minister Juan Ponce Enrile,
Gen. Fabian C. Ver, Gen. Fidel V. Ramos and Lt. Col. Miguel Coronel.)- The return of
the writ of habeas corpus and answer to the prayer for mandamus filed by the Solicitor
General for respondents in compliance with the resolution of August 17, 1982 is
NOTED.

At the hearing of this case this morning, former Senator Jose W. Diokno, Attorneys
Alexander A. Padilla and Efren H. Mercado appeared for petitioner. Solicitor General
Estelito P. Mendoza and Assistant Solicitor General Ramon A. Barcelona, appeared for
the respondents. All of the detainees, except Tom Vasquez, who was temporarily
released on July 17, 1982, were present in Court; Dr. Aurora Parong, Norberto
Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, Benjamin
Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida
Garcia, Eufronio Ortiz, Jr. and Juanito Granada. Attorney Alexander A. Padilla argued
for the petitioner. Solicitor General Mendoza argued for the respondents. Former
Senator Diokno argued in the rebuttal. The Court Resolved to require the Solicitor
General to SUBMIT within five (5) days from date the documents relevant to the
issuance of the Presidential Commitment Order. Thereafter, the case shall be
considered SUBMITTED for resolution.

As required, the Solicitor General submitted the documents relevant to the issuance of the
Presidential Commitment Order on August 27, 1982, after which the case was submitted for
resolution.

The fundamental issue here, as in all petitioner for the writ of habeas corpus, is whether or not
petitioners' detention is legal. We have carefully gone over the claims of the parties in their respective
pleadings as well as in the oral argument during the hearing on August 26, 1982, and We find that
petitioners have not been illegally deprived of their constitutional right to liberty, neither in the manner
of their arrest, nor by their continued detention, and that the circumstances attendant in the herein
case do not warrant their release on a writ of habeas corpus.

1. At the time of the arrest of the nine (9) of the fourteen (14) detainees herein on July 6, 1982,
records reveal that they were then having conference in the dining room of Dra. Parong's residence
from 10:00 a.m. of that same day. Prior thereto, all the fourteen (14) detainees were under
surveillance as they were then Identified as members of the Communist Party of the Philippines
(CPP) engaging in subversive activities and using the house of detainee Dra. Aurora Parong in
Bayombong, Nueva Viscaya, as their headquarters. Caught in flagrante delicto, the nine (9) detainees
mentioned scampered towards different directions leaving in top of their conference table numerous
subversive documents, periodicals, pamphlets, books, correspondence, stationaries, and other
papers, including a plan on how they would infiltrate the youth and student sector (code-named
YORK). Also found were one (1) .38 cal. revolver with eight (8) live bullets, nineteen (19) rounds of
ammunition for M16 armalite, eighteen thousand six hundred fifty pesos (P18,650.00) cash believed
to be CPP/NPA funds, assorted medicine packed and ready for distribution, as sizeable quantity of
printing paraphernalia, which were then seized. There is no doubt that circumstances attendant in the
arrest of the herein detainees fall under a situation where arrest is lawful even without a judicial
warrant as specifically provided for under Section 6(a), Rule 113 of the Rules of Court and allowed
under existing jurisprudence on the matter. As provided therein, a peace officer or a private person
may, without a warrant, arrest a person when the person to be arrested has committed or actually
committing, or is about to commit an offense in his presence.

From the facts as above narrated, the claim of the petitioners that they were initially arrested illegally
is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion,
conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the
furtherance on the occasion thereof, or incident thereto, or in connection therewith under Presidential
Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the
common offenses, aside from their essentially involving a massive conspiracy of nationwide
magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and
existing jurisprudence in our jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the
course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting
them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of the existence of probable
cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is
bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing
persons committing overt acts of violence against government forces, or any other milder acts but
equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the
exigencies of the situation that involves the very survival of society and its government and duly
constituted authorities. If killing and other acts of violence against the rebels find justification in the
exigencies of armed hostilities which is of the essence of waging a rebellion or insurrection, most
assuredly so in case of invasion, merely seizing their persons and detaining them while any of these
contingencies continues cannot be less justified. In the language of Moyer vs. Peabody, 1 cited with
approval in Aquino, et al. vs. Ponce Enrile, 2 the President " shall make the ordinary use of the
soldiers to that end that he may kill persons who resist, and, of course, that he may use the milder
measure of seizing the bodies of those whom he considers to stand in the way of restoring peace.
Such arrests are not necessarily for punishment, but are by way of precaution, to prevent the exercise
of hostile power."

Thus characterized, the arrest and detention of persons ordered by the President through the
issuance of Presidential Commitment Order PCO is merely preventive. "When it comes to a decision
by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to
what he deems the necessities of the moment. Public danger warrants the substitution of executive
process for judicial process." 3 What should be underscored is that if the greater violation against life
itself such as killing, will not be the subject of judicial inquiry, as it cannot be raised as transgressing
against the due process clause that protects life, liberty and property, lesser violations against liberty,
such as arrest and detention, may not be insisted upon as reviewable by the courts.
3. Transcendentally important, therefore, is the question of whether the issuance of a Presidential
Commitment Order (PCO) has provided the legal basis of the detention of herein detainees following
their arrest for Proclamation No. 2045 covered offenses. This question has to be set at rest promptly
and decisively, if We are to break a seemingly continuous flow of petitions for habeas corpus, as what
had been seen lately of such petitioners being filed in this Court one after the other.

The function of the PCO is to validate, on constitutional ground, the detention of a person for any of
the offenses covered by Proclamation No. 2045 which continues in force the suspension of the
privilege of the writ of habeas corpus, if the arrest has been made initially without any warrant, its
legal effect is to render the writ unavailing as a means of judicially inquiring into the legality of the
detention in view of the suspension of the privilege of the writ. The grant of the power to suspend the
said privilege provides the basis for continuing with perfect legality the detention as long as the
invasion or rebellion has not been repelled or quelled, and the need therefor in the interest of public
safety continues.

The significance of the conferment of this power, constitutionally upon the President as Commander-
in-Chief, is that the exercise thereof is not subject to judicial inquiry, with a view to determining its
legality in the light of the bill of rights guarantee to individual freedom. This must be so because the
suspension of the privilege is a military measure the necessity of which the President alone may
determine as an incident of his grave responsibility as the Commander-in-Chief of the Armed Forces,
of protecting not only public safety but the very life of the State, the government and duly constituted
authorities. This should be clear beyond doubt in the case of "invasion," along which "rebellion" or
"insurrection" is mentioned by the Constitution, which contingency does not present a legal question
on whether there is a violation of the right to personal liberty when any member of the invading force
is captured and detained.

The presidential responsibility is one attended with all urgency when so grave a peril to the life of the
Nation besets the country in times of the aforementioned contingencies. In the discharge of this
awesome and sacred responsibility, the President should be free from interference. The existence of
warlike conditions as are created by invasion, rebellion or insurrection, the direst of all emergencies
that can possibly confront a nation, argues, beyond dispute, against subjecting his actions in this
regard to judicial inquiry or interference from whatever source. If freedom from judicial review is
conceded in the exercise of his peacetime powers as that of appointment and of granting pardon,
denominated as political powers of the President, it should incontestably be more so with his wartime
power, as it were, to adopt any measure in dealing with situations calling for military action as in case
of invasion, rebellion or insurrection.

The suspension of the privilege of the writ of habeas corpus is one such measure. To be effective, the
occasion for its application on specific individuals should be left to the exclusive and sound judgment
of the President, at least while the exigencies of invasion, rebellion or insurrection persist, and the
public safety requires it, a matter, likewise, which should be left for the sole determination of the
President as Commander-in-Chief of the Nation's armed forces. The need for a unified command in
such contingencies is imperative-even axiomatic-as a basic military concept in the art of warfare.

4. From the clear language of the Lansang case, 4 "the function of Court is merely to check not to
supplant the Executive, or to ascertain merely whether he has gone beyond the constitutional
limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act.
" If, however, the constitutional right to bail is granted to the herein petitioners by the court, through
the procedure laid down under Rule 114 of the Rules of court, what inevitably results is the
supplanting of the decision of the President to detain pursuant to Proclamation No. 2045, of persons
who come under its coverage.
The specific mention in the Constitution of rebellion and insurrection along with invasion and
imminent danger thereof, shows that the terms "rebellion and insurrection" are used therein in the
sense of a state or condition of the Nation, not in the concept of a statutory offense. What, therefore,
should determine the legality of imposing what is commonly referred to as "preventive detention"
resulting from the suspension of the privilege of habeas corpus, is the necessity of its adoption as a
measure to suppress or quell the rebellion, or beat off an invasion. The necessity for such measure
as a means of defense for national survival quite clearly transcends in importance and urgency the
claim of those detained to the right to bail to obtain their freedom. To hold otherwise would defeat the
purpose of the constitutional grant of the power to suspend the privilege of the writ of habeas corpus
on the occasions expressly mentioned in the charter. For what indeed could the purpose be of
suspending the privilege of the writ of habeas corpus other than to restrict, at least for the duration of
the emergency of invasion or rebellion, the right to personal liberty, dictated as it is, in the greater
interest of public safety and national security.

So it is that Proclamation No. 2045 mentions not only rebellion or insurrection as coming within the
suspension of the privilege of the writ of habeas corpus, but also other offenses, including subversion
which is not mentioned in the Constitution, committed by reason or on the occasion of the rebellion,
or in connection therewith, or in the furtherance thereof. There need be no alarm over what libertarian
jurists fear as violation of the constitutional right to personal liberty when the President decrees the
suspension of the privilege of habeas corpus. Only those who give cause for it will be subject to
restriction of their liberty, as the necessity therefor arises in the interest of national defense and
survival. The constitutional guarantee of individual freedom is intact in all its plenitude and sanctity,
save only as the Constitution has envisioned the need for its limitation, and only to a few, in relation to
the entire population, as the Constitution itself permits in case of overwhelming and imperious
necessity.

5. Worthy of profound notice and keen appreciation is the fact that the authority to suspend the
privilege of the writ of habeas corpus has been deliberately vested on the President as the
Commander-in-Chief of the armed forces, together with the related power to call out the armed forces
to suppress lawless violence and impose martial law. 5The choice could not have been more wise and
sound, for no other official may, with equal capability and fitness, be entrusted with the grave
responsibility that goes with the grant of the authority. The legislature was considered in the
alternative upon which to lodge the power, or to share in its exercise, but the distilled wisdom of the
Constitutional Convention finally made its choice for the President alone.

As previously noted, "invasion" which is not a statutorily-defined offense and "imminent danger
thereof" as mentioned in the Constitution indicate that "rebellion and insurrection" are also mentioned
therein not in their concept as statutorily-defined public crimes, but as a state or condition of extreme
emergency resulting from the existence of the aforesaid events. Now, if captured enemies from the
invading force may not be charged with any statutory offense that would provide the occasion to
demand the right to bail, it is obvious that persons engaged in rebellion or insurrection may not claim
the right to be released on bail when similarly captured or arrested during the continuance of the
aforesaid contingency. They may not even claim the right to be charged immediately in court, as they
may rightfully do so, were they being charged with an ordinary or common offense. This is so
because according to legal writers or publicists, the suspension of the privilege of the writ of habeas
corpus "has the sole effect of allowing the executive to defer the trials of persons charged with certain
offenses during the period of emergency." 6 This clearly means denial of the right to be released on
bail on being charged in court with bailable offenses.

The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the
suspension of the right to bail, if the government's campaign to suppress the rebellion is to be
enhanced and rendered effective. If the right to bail may be demanded during the continuance of the
rebellion, and those arrested, captured and detained in the course thereof will be released, they
would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of
government efforts to bring to an end the invasion, rebellion or insurrection.

Realistically, a person engaged in the rebellion does not, upon being arrested or captured, cease to
be as committed to the cause of the movement. Through a grand conspiracy, as is of the essence of
how rebellion is committed, involving a great mass of confederates bound together by a common
goal, he remains in a state of continued participation in the criminal act or design. His heart still beats
with the same emotion for the success of the movement of which he continues to be an ardent
adherent and ally. It is simple logic then to hold that there should be no legal compulsion for a
captured rebel to be charged in court, only to be released on bail, while he is, realistically and legally,
still as much as part and parcel of the movement, continuing as it is, as those still engaged in carrying
on actively to attain their goal of overthrowing the established regime. Hence, it is easy to perceive
how impressed with absolute verity is the opinion expressed by two acknowledged authorities on
Constitutional law in our country, 7 which We quote:

... If the return to the writ shows that the person in custody was apprehended and
detained in areas where the privileges of the writ have been suspended or for the
crimes mentioned in the executive proclamation, the court will suspend further
proceedings in the action.

Impeccable as it is, the opinion could not but find a resonant echo as it did in the recent case
of Buscayno vs. Military Commission; 8 decided after Proclamation No. 2045 was issued, which in
terms clear and categorical, held that the constitutional right to bail is unavailing when the privilege of
the writ of habeas corpus is suspended with respect to certain crimes as enumerated or described in
the abovementioned Proclamation.

It is, likewise, all too well-known that when the rebel forces capture government troopers or kidnap
private individuals, they do not accord to them any of the rights now being demanded by the herein
petitioners, particularly to be set at liberty upon the filing of bail. As a matter of common knowledge,
captives of the rebels or insurgents are not only not given the right to be released, but also denied
trial of any kind. In some instances, they may even be liquidated unceremoniously. What is then
sought by the suspension of the privilege of the writ of habeas corpus is, among others, to put the
government forces on equal fighting terms with the rebels, by authorizing the detention of their own
rebel or dissident captives as the rebellion goes on. In this way, the advantage the rebellion forces
have over those of the government, as when they resort to guerilla tactics with sophisticated
weapons, is, at least, minimized, thereby enhancing the latter's chances of beating their enemy. It
would, therefore, seem to be ignoring realities in the name of misplaced magnanimity and
compassion, and for the sake of humanity, to grant the demand for respect of rights supposedly
guaranteed by the Constitution by those who themselves seek to destroy that very same instrument,
trampling over it already as they are still waging war against the government. This stark actuality
gives added force and substance to the rationale of the suspension of the privilege of the writ of
habeas corpus in case of invasion, insurrection, rebellion, or imminent danger thereof, when public
safety requires it.

6. Invoking the Lansang case, 9 however, petitioners would ask this Court to review the issuance of
the PCO against them, intimating that arbitrariness attended its issuance because, relying on the
evidence supposedly available in the hands of the military, they claim they are not guilty of rebellion.
They also contend that the provisions of LOI No. 1211 have not been complied with.

The Lansang case went no further than to pronounce the suspension of the writ of the privilege of
habeas corpus on August 21, 1971, valid and constitutional, on a finding that there was no
arbitrariness attendant to the suspension. It never intended to suggest that for every individual case
of arrest and detention, the writ of habeas corpus is available, even after the suspension of this
privilege, to question the legality of the arrest and detention on ground of arbitrariness. When a
person is charged in court for an ordinary offense, the law does not authorize the filing of a petition for
habeas corpus based on the ground that there is absolutely no evidence to hold him for trial, which, in
effect, constitutes an allegation of arbitrariness in the filing of the case against him. The law has
afforded him adequate safeguards against arbitrariness, such as the requirement of determining the
existence of a probable cause by the judge before the issuance of the warrant of arrest. The finding of
such probable cause may not be immediately brought for review by this Court in a habeas corpus
proceeding, on the claim of arbitrariness. The matter is to be decided on the basis of the evidence,
and this Court is not the proper forum for the review sought, not being a trier of facts. If such a
procedure were allowed, it would be easy to delay and obstruct the prosecution of an offense by a
resort to a petition for habeas corpus based on arbitrariness, which most accuse, if not all, would be
most inclined, specially when they are out on bail. The petition now before Us is exactly one of this
kind. If granted, the effect is to transfer the jurisdiction of the trial courts in criminal cases to this
Court, which is simply inconceivable. Moreover, arbitrariness, while so easy to allege, is hard to
prove, in the face of the formidable obstacle built up by the presumption of regularity in the
performance of official duty. Unexhilaratingly, this is the revealing experience of this Court in the
Lansang case, where it doubtlessly realized how hardly possible it is to adduce evidence or proof
upon which to show the President having acted with arbitrariness.

7. The last question relates to the legality of the Presidential Commitment Order (PCO) issued by the
President on July 12, 1982, tested by the conformity of its issuance to the procedure laid down under
LOI 1211, petitioners insisting that the LOI limits the authority of the President to cause the arrest and
detention of persons engaged in or charged with, the crimes mentioned in Proclamation No. 2045.
They contend that the procedure prescribed in the LOI not having been observed, the PCO issued
thereunder did not validate the initial illegal arrest of the herein petitioners as wen as their continued
detention.

It must be noted that LOI No. 1211, which provides the guidelines in the arrest and detention of
persons engaged in, or charged with, the crimes mentioned in Proclamation No. 2045, charged with,
the crimes mentioned contemplates of three situations when an arrest can be made, to wit:

1. The arrest and detention effected by virtue of a warrant issued by a judge;

2. The arrest and detention effected by a military commander or the head of a law
enforcement agency after it is determined that the person or persons to be arrested
would probably escape or commit further acts which would endanger public order and
safety. After the arrest, however, the case shall be immediately referred to the city or
provincial fiscal or to the municipal, city, circuit, or district judge for preliminary
examination or investigation who, if the evidence warrants, shall file the corresponding
charges and, thereafter, we a warrant of arrest;

3. The military commander or the head of the law enforcement agency may apply to the
President thru the Minister of National Defense, for a Presidential Commitment Order
under the following circumstances:

(a) When resort to judicial process is not possible or expedient without

endangering public order and safety; or
 (b) When the release on bail of the person or persons already under
arrest by virtue of a judicial warrant would endanger said public order and
safety.

Petitioners appear to place entire reliance on paragraphs 1 and 2 of LOI No. 1211, ignoring
paragraph 3 of LOI No. 1211, which provides:

3. The above notwithstanding, the military commander or the head of the law
enforcement agency may apply to the President thru the Minister of National Defense,
for a Presidential Commitment Order covering the person or persons believed to be
participants in the commission of the crimes referred to in paragraph 1 under the
following circumstances:

(a) When resort to judicial process is not possible or expedient without

endangering public order and safety; or

(b) When the release on bail of the person or persons already under arrest
by virtue of a judicial warrant would endanger said public order and safety.

The reliance of petitioners on paragraphs 1 and 2 of LOI 1211 as to the alleged necessity of judicial
warrant before a person may be arrested and detained is not well-founded. Neither is the contention
that paragraph 3 of LOI 1211 applies only when judicial process is not possible. This is a narrow and
constricted interpretation of LOI 1211 when viewed in its entirety. Even in instances when a resort to
judicial process is possible, where, in the judgment of the President, a resort thereto would not be
expedient because it would endanger the public order or safety, a PCO is justified. So, too, when
release on bail in the ordinary judicial process will invite the same danger.

By its very nature, and clearly by its language, LOI 1211 is a mere directive of the President as
Commander-in-Chief of the Armed Forces of the Philippines to his subordinates or implementing
officers for the ultimate objective of providing guidelines in the arrest and detention of the persons
covered by Presidential Proclamation No. 2045. The purpose is "to insure protection to individual
liberties without sacrificing the requirements of public order and safety and the effectiveness of the
campaign against those seeking the forcible overthrow of the government and duty constituted
authorities. " LOI 1211 does not, in any manner, limit the authority of the President to cause the arrest
and detention of persons engaged in, or charged with the crimes or offenses mentioned in said
Proclamation in that he (President) would subject himself to the superior authority of the judge who,
under normal judicial processes in the prosecution of the common offenses, is the one authorized to
issue a judicial warrant after a preliminary investigation is conducted with a finding of probable cause.
Those who would read such an intention on the part of the President in issuing LOI 1211 seems to do
so in their view that LOI forms part of the law of the land under the 1976 amendment of the
Constitution. 10 They would then contend that a PCO issued not in compliance with the provisions of
the LOI would be an illegality and of no effect.

To form part of the law of the land, the decree, order or LOI must be issued by the President in the
exercise of his extraordinary power of legislation as contemplated in Section 6 of the 1976
amendments to the Constitution, whenever in his judgment, there exists a grave emergency or a
threat or imminence thereof, or whenever the interim Batasan Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any reason that in his judgment
requires immediate action. There can be no pretense, much less a showing, that these conditions
prompted the President to issue LOI 1211. Verily, not all LOI issued by the President should be
dignified into forming part of the law of the land.
In the event then that the judge believes no warrant shall issue, the President, under Presidential
Proclamation No. 2045 and Letter of Instruction No. 1211, is not bound by such finding, as explicitly
provided in paragraph 2 of LOI 1211. That the President avails of the facilities of the judicial
machinery, as is the clear intent of LOI 1211, to aid him in exercising his power to restrain personal
liberty, as dictated by the necessities and exigencies of the emergency, does not indicate any
intention on his part to renounce or to allow even mere curtailment of his power such that the judicial
process will thereupon take its normal course, under which the detainees or accused would then be
entitled to demand their right of due process, particularly in relation to their personal liberty. 11 The
issuance of the PCO by the President necessarily constitutes a finding that the conditions he has
prescribed in LOI 1211 for the issuance of that PCO have been met, and intends that the detention
would be pursuant to the executive process incident to the government campaign against the rebels,
subversives and dissidents waging a rebellion or insurrection. The ruling in the Nava vs. Gatmaitan
case,* as above intimated, must have shown him that to prosecute the offense through the judicial
process of forthwith instead of deferring it, would neither be wise nor expedient if he were to deal
effectively with the grave emergency at hand.

What has been said above shows the need of reexamining the Lansang case with a view to reverting
to the ruling of Barcelon vs. Baker, 5 Phil. 87, a 1905 decision, and Montenegro vs. Castaneda, 91
Phil. 882 (1952), that the President's decision to suspend the privilege of the writ of habeas corpus is
"final and conclusive upon the courts, and all other persons." This well-settled ruling was diluted in the
Lansang case which declared that the "function of the Court is merely to check not to supplant
the Executive, or ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction not to exercise the power vested in him or to determine the wisdom of his act." Judicial
interference was thus held as permissible, and the test as laid down therein is not whether the
President acted correctly but whether he acted arbitrarily. This would seem to be pure semanticism, if
We consider that with particular reference to the nature of the actions the President would take on the
occasion of the grave emergency he has to deal with, which, as clearly indicated in Section 9, Art. VII
of the Constitution partakes of military measures, the judiciary can, with becoming modesty, ill afford
to assume the authority to check or reverse or supplant the presidential actions. On these occasions,
the President takes absolute command, for the very life of the Nation and its government, which,
incidentally, includes the courts, is in grave peril. In so doing, the President is answerable only to his
conscience, the people and to God. For their part, in giving him the supreme mandate as their
President, the people can only trust and pray that, giving him their own loyalty with utmost patriotism,
the President will not fail them.

In his separate opinion in the Lansang case, then Justice Fernando, now our learned Chief Justice,
went along with the proposition that the decision of the Executive in the exercise of his power to
suspend the privilege of the writ of habeas corpus is his alone, and in his own language, is "ordinarily
beyond the ken of the Courts." This is so, as the Founding Fathers must have felt that in the particular
situations at hand, the Executive and the Judiciary should maintain a mutually deferential attitude.
This is the very essence of the doctrine of "political question, " as determining the justiciability of a
case. The wisdom of this concept remains well-recognized in advanced constitutional systems. To
erase it from our own system as seems to be what was done in the Lansang case, may neither be
proper nor prudent. A good example could be given in the exercise of the presidential power of
pardon which is beyond judicial review, specially under the new Constitution where the condition that
it may be granted only after final conviction has been done away with.

True, the Constitution is the law "equally in war and in peace," 12 as Chief Justice Fernando cited in
his brilliant separate opinion in the same Lansang case. Precisely, it is the Constitution that gives the
President specific "military power" in times of warlike conditions as exist on the occasion of invasion,
insurrection or rebellion. Both power and right are constitutionally granted, with the difference that the
guarantee of the right to liberty is for personal benefit, while the grant of the presidential power is for
public safety. Which of the two enjoys primacy over the other is all too obvious. For the power is
intended as a limitation of the right, in much the same way as individual freedom yields to the
exercise of the police power of the State in the interest of general welfare. The difference again is that
the power comes into being during extreme emergencies the exercise of which, for complete
effectiveness for the purpose it was granted should not permit intereference, while individual freedom
is obviously for full enjoyment in time of peace, but in time of war or grave peril to the nation, should
be limited or restricted. In a true sense then, our Constitution is for both peacetime and in time of war;
it is not that in time of war the Constitution is silenced. The Founding Fathers, with admirable
foresight and vision, inserted provisions therein that come into play and application in time of war or
similar emergencies. So it is that, as proclaimed by the Constitution, the defense of the State is a
prime duty of government. Compulsory military service may be imposed, certainly a mandate that
derogates on the right to personal liberty. It, therefore, becomes self-evident that the duty of the
judiciary to protect individual rights must yield to the power of the Executive to protect the State, for if
the State perishes, the Constitution, with the Bill of Rights that guarantees the right to personal liberty,
perishes with it.

In times of war or national emergency, the legislature may surrender a part of its power of legislation
to the President. 13 Would it not be as proper and wholly acceptable to lay down the principle that
during such crises, the judiciary should be less jealous of its power and more trusting of the Executive
in the exercise of its emergency powers in recognition of the same necessity? Verily, the existence of
the emergencies should be left to President's sole and unfettered determination. His exercise of the
power to suspend the privilege of the writ of habeas corpus on the occasion thereof, should also be
beyond judicial review. Arbitrariness, as a ground for judicial inquiry of presidential acts and decisions,
sounds good in theory but impractical and unrealistic, considering how well-nigh impossible it is for
the courts to contradict the finding of the President on the existence of the emergency that gives
occasion for the exercise of the power to suspend the privilege of the writ. For the Court to insist on
reviewing Presidential action on the ground of arbitrariness may only result in a violent collision of two
jealous powers with tragic consequences, by all means to be avoided, in favor of adhering to the
more desirable and long-tested doctrine of "political question" in reference to the power of judicial
review. 14

Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason for the
reexamination of the Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro
vs. Castaneda.

Accordingly, We hold that in times of war and similar emergency as expressly provided in the
Constitution, the President may suspend the privilege of the writ of habeas corpus, which has the
effect of allowing the Executive to defer the prosecution of any of the offenses covered by
Proclamation No. 2045, including, as a necessary consequence, the withholding for the duration of
the suspension of the privilege, of the right to bail. The power could have been vested in Congress,
instead of the President, as it was so vested in the United States for which reason, when President
Lincoln himself exercised the power in 1861, Chief Justice Taney of the U.S. Supreme Court
expressed the opinion that Congress alone possessed this power under the
Constitutional., 15 Incidentally, it seems unimaginable that the judiciary could subject the suspension, if
decreed through congressional action, to the same inquiry as our Supreme Court did with the act of
the President, in the Lansang case, to determine if the Congress acted with arbitrariness.

We further hold that under LOI 1211, a Presidential Commitment Order, the issuance of which is the
exclusive prerogative of the President under the Constitution, may not be declared void by the courts,
under the doctrine of "political question," as has been applied in the Baker and Castaneda cases, on
any ground, let alone its supposed violation of the provision of LOI 1211, thus diluting, if not
abandoning the doctrine of the Lansang case. The supreme mandate received by the President from
the people and his oath to do justice to every man should be sufficient guarantee, without need of
judicial overseeing, against commission by him of an act of arbitrariness in the discharge particularly
of those duties imposed upon him for the protection of public safety which in itself includes the
protection of life, liberty and property. This Court is not possessed with the attribute of infallibility that
when it reviews the acts of the President in the exercise of his exclusive power, for possible fault of
arbitrariness, it would not itself go so far as to commit the self-same fault.

Finally, We hold that upon the issuance of the Presidential Commitment Order against herein
petitioners, their continued detention is rendered valid and legal, and their right to be released even
after the filing of charges against them in court, to depend on the President, who may order the
release of a detainee or his being placed under house arrest, as he has done in meritorious cases.

WHEREFORE, the instant petition should be, as it is hereby dismissed.

SO ORDERED.

Guerrero, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.

Concepcion, Jr. and Melencio-Herrera, JJ., concur in the result.

Aquino, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 154037 April 30, 2003

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENJAMIN VERGARA, JONA
SARVIDA, MILAGROS MAJOREMOS, MAJORIE JALALON, MAY JOY MENDOZA (@ May Joy
Sandi), and JOY SABALLA (@ Josephine Saballa), MABELYN B. VERGARA, RIO SARVIDA,
FRANCISCO MAJOREMOS, in their respective behalves and in behalf of ROY JALALON,
ROMMEL MENDOZA and DELFIN SABALLA, petitioners,
vs.
HON. FRANCISCO C. GEDORIO, JR., Presiding Judge, Regional Trial Court of Ormoc, Branch
12; SPO3 ANGELO S. LLENOS and the CITY JAIL WARDEN OF ORMOC; and ELEUTERIA P.
BOLAO, respondents.

AUSTRIA-MARTINEZ, J.:

Petitioners are the tenants of Berlito P. Taripe on a property located in Dr. A. Santos Ave., Paraaque
City. On December 24, 2001, they were arrested by Ormoc City policemen by authority of a Warrant
of Arrest dated November 19, 2001 issued by Judge Fortunito L. Madrona in Sp. Proc. No. 3695-0 for
Issuance of Letters of Administration, Distribution and Partition pending before the Regional Trial
Court of Ormoc City (Branch 12).1
The warrant of arrest stemmed from a motion filed by respondent Eleuteria P. Bolao, as Special
Administratrix of the estate of the late Anselma P. Allers, praying that petitioners be held guilty of
indirect contempt for not complying with the probate court's order dated October 9, 1999 directing
them to pay their monthly rentals to respondent Bolao. 2

It appears that pending the settlement of the estate of the deceased Allers, respondent Bolao
included the property leased by Taripe to petitioners in the inventory of the estate. The probate court
issued the assailed Order dated October 5, 1999, portions of which read as follows:

1. SUBMITTED FOR RESOLUTION is an omnibus motion filed by the Petitioner-

Administratrix, informing among others, the submission of the Inventory of the Estate of the
decedent, referred as Motion-Annex 'A' thereof. The Inventory shows that the properties left by
the deceased consists of Real and Personal Properties, as well as Credits and Collectibles,
itemized under letter heading A, B, and C of the Inventory, respectively.

2. The Real Properties are occupied by some lessees, namely: Cargo Bridge Philippines
Corporation, represented by its President Mr. Bernhard Ashauer, Jr.; Mrs. Lea Amorcillo, Mrs.
Milagros Majoremos, Mr. Danilo Aguylo, Mrs. Marjorie Jalalon, Mrs. Jona Sarvida, Mrs. Analyn
Malunes, Mrs. Edna Rubi, Mrs. Josephine Saballa, Mr. Benjamin Vergara, Mr. Jerry
Peligro, Mrs. Mary Joy Sandi, and Mr. Jaime Cabarse, all inside the Allers' Property Compound
at 8110 Dr. A. Santos Ave., San Dionisio, Paraaque City.

xxx xxx xxx

5. It is further shown that all known intervenors, lessees and heirs were served of the motion
and notified of the hearing, with no opposition except intervenor Berlito P. Taripe, based on his
claim against the estate, which may be treated in due time for claims against the estate.
However, the motion under consideration refers to the return to the court of the true Inventory
of the Estate of the deceased within three (3) months as directed under Section 1, Rule 83
which sets a specific period of time to submit, otherwise it is violated. The opposition is not
tenable.

6. Finding the motion meritorious, the same is hereby GRANTED. As prayed for, the Inventory
of the Estate attached therewith as Motion-Annex 'A' (sic) and considered as a compliance of
the required return of the true Inventory of the estate of the decedent.

7. Further, the lessees above-cited and listed in the Inventory are directed to pay their
respective monthly rental regularly starting the month of August, 1999, including arrears if any,
to the duly appointed Special Administratrix Mrs. Eleuteria P. Bolao, until further notice.

xxx xxx xxx

Let copies of this Order together with the Inventory served to all above-cited.

SO ORDERED.3 (Emphasis Ours)

Copies of the order were sent on October 12, 1999 to petitioners via registered mail. 4

Five months later, on motion of respondent Bolao, as Special Administratrix, the probate court
issued a writ of execution on March 3, 2000 to enforce the aforesaid order dated October 5, 1999.
The Sheriff submitted a return dated August 10, 2000 stating that on June 5, 2000, he met with
petitioners but failed to collect the rentals due on the property as Taripe had already collected from
them three months advance rentals.5

On August 4, 2000, respondent Bolao filed a motion to require petitioners to explain why they should
not be cited in indirect contempt for disobeying the October 5, 1999 order of the probate
court.6 Petitioners were served copies of the motion by registered mail. 7 The probate court granted
the motion in its Resolution dated September 7, 2000, portions of which read as follows:

The Motion to Exclude Certain Parcels of Land as part of the Estate of the decedent is also
denied for lack of merit. The properties sought to be excluded by intervenor Bertito P. Taripe
are titled/registered in the name of the decedent and therefore they should be included in the
inventory of the intestate estate of Anselma Allers. If intervenor has claims against the estate,
he should file a separate action against the Administratrix in accordance with Rule 87 of the
Revised Rules of Court. As it is, intervenor cannot claim ownership over properties registered
in the name of the decedent by mere motion.

The Return of the Deputy Sheriff of the Writ of Execution is noted.

Petitioner's motion to let the lessees explain why they should not be cited for contempt for
disobeying the Court's order is granted. All lessees listed on the Writ of Execution are hereby
ordered to explain within twenty (20) days from receipt of this order why they should not be
cited for indirect contempt of the Court for disobeying the Court's Order dated October 5, 1999,
and the Writ of Execution dated May 29, 2000.

SO ORDERED. (Emphasis Ours)

Petitioners were furnished copies of the said Order on September 27, 2000 by registered mail. 8

Six months later, in a letter dated March 18, 2001, some of the petitioners, together with the other
tenants of the property, informed the probate court that they are "freezing" their monthly rentals as
they are in a quandary as to whom to pay the rentals. 9

Respondent Bolao then filed on March 20, 2001, a motion to cite petitioners in contempt, which was
set for hearing on May 11, 2001.10 In its Order dated May 11, 2001, the probate court found
petitioners guilty of indirect contempt and ordered them to pay a fine of P30,000.00 each and to
undergo imprisonment until they comply with the probate court's order for them to pay rentals. 11

Petitioners again wrote the probate court on June 11, 2001 asking that the indirect contempt
"slapped" against them be withdrawn. They stated that their failure to attend the May 11, 2001
hearing was due to financial constraints, most of them working on construction sites, receiving
minimum wages, and repeated that the reason why they are freezing the monthly rentals is that they
are uncertain as to whom to remit it.12

Upon motion of respondent Bolao, the probate court, per its Order dated November 16, 2001, issued
a warrant of arrest on November 19, 2001. On December 24, 2001, petitioners were arrested.

On December 26, 2001, petitioners filed with the Court of Appeals a petition for the issuance of a writ
of habeas corpus.13 On January 3, 2002, the appellate court ordered the temporary release of
petitioners.14 After due proceedings, the appellate court rendered its decision on March 26, 2002
denying the petition for lack of merit. The dispositive portion of the decision reads:

WHEREFORE, the instant petition for issuance of a writ of habeas corpus is hereby DENIED
for lack of merit. This Court's resolution ordering the temporary release of the lessees is
hereby RECALLED. The lessees are ordered REMANDED to the custody of the Jail Warden of
Ormoc City until they have complied with the orders of the probate court.

No pronouncement as to costs.

SO ORDERED.15

Their motion for reconsideration having been denied, petitioners filed herein petition for review on
certiorari under Rule 45 of the Rules of Court, based on the following grounds:

I. THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE ORDER DATED
OCTOBER 5, 1999 (ANNEX "E") PARTICULARLY THE PORTION THEREOF WHICH
SUMMARILY DIRECTED THE LESSEES TO TURNOVER THEIR MONTHLY RENTALS OF
THE APARTMENTS OF BERLITO P. TARIPE TO ELEUTERIA P. BOLAO AS SPECIAL
ADMINISTRATRIX, IS UNLAWFUL;

II. THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE MOTION FOR INDIRECT
CONTEMPT OF COURT FILED BY RESPONDENT ELEUTERIA P. BOLAO AGAINST THE
LESSEES IS NOT THE PROPER REMEDY AND THAT THE ORDER OF THE COURT A
QUO GRANTING SAID MOTION AND DECLARING THAT THE LESSEES ARE GUILTY OF
INDIRECT CONTEMPT IS A REVERSIBLE ERROR.

III. THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE ORDER OF THE
COURT A QUO TO ISSUE WARRANT OF ARREST AND THE SAID WARRANT SO ISSUED
AS WELL AS THE ACTUAL ARREST OF SAID LESSEES IN COMPLIANCE THEREWITH,
ARE UNLAWFUL;

IV. THE APPELLATE COURT ERRED IN NOT HOLDING THE TEMPORARY RELEASE OF
THE LESSEES PERMANENT.16

The crux of petitioners' arguments is that they were not notified of the motion filed by respondent
Special Administratrix Bolao, submitting an inventory of the estate of the late Anselma P. Allers,
which includes the property occupied by them. Such being the case, petitioners contend that the
order dated October 5, 1999 granting the motion and directing them to pay the rentals to Bolao is
unlawful hence, their refusal to comply with it is not contumacious. 17 They also assail the appointment
of respondent Bolao as Special Administratrix for having been made without the required
bond,18 and that she has no authority to file the motion for indirect contempt, as her powers are
limited.19

When service of notice is an issue, the rule is that the person alleging that the notice was served
must prove the fact of service.20 The burden of proving notice rests upon the party asserting its
existence.21 In civil cases, service made through registered mail is proved by the registry receipt
issued by the mailing office and an affidavit of the person mailing of facts showing compliance with
Section 7 of Rule 13. In the present case, as proof that petitioners were served with copies of the
omnibus motion submitting an inventory of the estate of deceased Allers, respondent Bolao
presented photocopies of the motion with a certification by counsel that service was made by
registered mail, together with the registry receipts. 22 While the affidavit and the registry receipts
proved that petitioners were served with copies of the motion, it does not follow, however, that
petitioners in fact received the motion. Respondent Bolao failed to present the registry return cards
showing that petitioners actually received the motion. 23 Receipts for registered letters and return
receipts do not prove themselves, they must be properly authenticated in order to serve as proof of
receipt of the letters.24 Respondent also failed to present a certification of the postmaster that notice
was duly issued and delivered to petitioners such that service by registered mail may be deemed
completed.25

Nonetheless, even in the absence of proof of actual receipt by the petitioners, the subject orders
issued by the probate court are valid and enforceable. Petitioners cannot deny the fact that they had
actual knowledge of the said orders. They have admitted in their letter dated March 18, 2001
addressed to the probate court that they received the court's order dated October 5, 1999 "barely 2
months before," 26 or sometime in January 2001. Instead of complying with the said order, they
"froze" payment of their rentals for the reason that they are caught in the middle of the dispute and
are not sure to whom to give the rentals. When respondent Bolao filed the motion to cite them in
indirect contempt, setting the hearing on May 11, 2001, again, records show that they had actual
knowledge of the same. In their second letter, dated June 11, 2001, addressed to the probate court,
they acknowledged that they knew of the hearing set on May 11, 2001, and the reason for their failure
to attend was due to financial constraints. 27 They likewise admitted in said letter that they knew of the
court's order dated May 11, 2001 finding them guilty of indirect contempt. 28 Petitioners therefore
cannot cry denial of due process as they were actually notified of the proceedings before the probate
court. Thus, under the circumstances, it is not imperative to require proof of a formal notice. It would
be an idle ceremony where an adverse party, as in this case, had actual knowledge of the
proceedings.29

When petitioners refused to remit the rentals to respondent Bolao per Order dated October 5, 1999,
a written charge of indirect contempt was duly filed before the trial court and hearing on the motion
set on May 11, 2001. As previously stated, petitioners did not attend said hearing despite knowledge
thereof; instead, they wrote the court on June 11, 2001 asking that the contempt findings against
them be withdrawn. Clearly, they were given the opportunity to be heard, and as aptly stated by the
court, they were given more than sufficient time to comply with the Order dated October 5, 1999. 30
Despite the foregoing, we find that the trial court's finding of contempt and the order directing the
imprisonment of petitioner to be unwarranted. The salutary rule is that the power to punish to
contempt must be exercised on the preservative, not vindictive principle, and on the corrective and
not retaliatory idea of punishment. Court must exercise their contempt powers judiciously and
sparingly, with utmost self-restraint.31

In Halili vs. Court of Industrial Relations,32 the Court quoted the pronouncements of some American
courts, to wit:

Except where the fundamental power of the court to imprison for contempt has been restricted
by statute, and subject to constitutional prohibitions where a contemnor fails or refuses to obey
an order of the court for the payment of money he may be imprisoned to compel obedience to
such order. [Fla.Revell v. Dishong, 175 So. 905, 129 Fla. 9; Va. Branch v. Branch, 132 S.E.
303; 144 Va. 244]. (17 C.J.S. 287).

xxx xxx xxx

. . . It has been said that imprisonment for contempt as a means of coercion for civil purpose
cannot be resorted to until all other means fail [Mich.Atchison, etc. R. co. v. Jennison, 27
N.W. 6, 60 Mich. 232], but the court's power to order the contemnor's detension continues so
long as the contumacy persists [Ark.Lane v. Alexander, 271 S.W. 710, 168 Ark. 700] (17
C.J.S. 289).33

which we hereby adopt as proper guidelines in the determination of whether the Court of Appeals
erred in affirming the order of the trial court finding petitioners guilty of indirect contempt of court and
directing their imprisonment for their contumacious refusal to pay the rentals to the administratrix.

In Philippine jurisdiction, Section 20, Article 3 of the 1987 Philippine Constitution expressly provides
that no person shall be imprisoned for debt. Debt, as used in the Constitution, refers to civil debt or
one not arising from a criminal offense.34 It means any liability to pay arising out of a contract, express
or implied.35 In the present case, petitioners, as recognized lessees of the estate of the deceased,
were ordered by the probate court to pay the rentals to the administratrix. Petitioners did not comply
with the order for the principal reason that they were not certain as to the rightful person to whom to
pay the rentals because it was a certain Berlito P. Taripe who had originally leased the subject
property to them. Clearly, the payment of rentals is covered by the constitutional guarantee against
imprisonment.

Moreover, petitioners cannot be validly punished for contempt under Section 8, Rule 71 of the Rules
of Court to wit:

SEC. 8. Imprisonment until order obeyed. When the contempt consists in the refusal or
omission to do an act which is yet in the power of the respondent to perform, he may be
imprisoned by order of the court concerned until he performs it. (7a)

because herein subject order is not a special judgment enforceable, under Section 11, Rule 39, which
provides:
 SEC. 11. Execution of special judgment. When a judgment requires the performance of any
act other than those mention in the two preceding sections, a certified copy of judgment shall
be attached to the writ of execution and shall be served by the officer upon the party against
whom the same is rendered, or upon any other person required thereby, or by law to obey the
same, and such party or person may be punished for contempt if he disobeys such judgment.

Section 9 of Rule 39 refers to the execution of judgments for money, thus:

SEC. 9. Execution of judgments for money, how enforced. (a) Immediate payment on
demand. The officer shall enforce an execution of a judgment for money by demanding from
the judgment obligor the immediate payment of the full amount stated in the writ of execution
and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the
judgment obligee, or any other form of payment acceptable to the latter, the amount of the
judgment debt under proper receipt directly to the judgment obligee or his authorized
representative if present at the time of payment. The lawful fees shall be handed under proper
receipt to the executing sheriff who shall turn over the said amount within the same day to the
clerk of court of the court that issued the writ.

If the judgment obligee or his authorized representative is not present to receive payment, the
judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall
turn over all the amounts coming into his possession within the same day to the clerk of court
of the court that issued the writ, or if the same is not practicable, deposit said amounts to a
fiduciary account in the nearest government depository bank of the Regional Trial court of the
locality.

The clerk of said court shall thereafter arrange for the remittance of the deposit to the account
of the court that issued the writ whose clerk of court shall then deliver said payment to the
judgment obligee in satisfaction of the judgment. The excess, if any, shall be delivered to the
judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as
provided by law. In no case shall the executing sheriff demand that any payment by check be
made payable to him.

(b) Satisfaction by levy. If the judgment obligor cannot pay all or part of the obligation in
cash, certified bank check or other mode or payment acceptable to the judgment obligee, the
officer shall levy upon the properties of the judgment obligor of every kind and nature
whatsoever which may be disposed of for value and not otherwise exempt from execution
giving the latter the option to immediately choose which property or part thereof may be levied
upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option,
the officer shall first levy on the personal properties, if any, and then on the real properties if
the personal properties are insufficient to answer for the judgment.

The sheriff shall sell only a sufficient portion of the personal or real property of the judgment
obligor which has been levied upon.
 When there is more property of the judgment obligor than is sufficient to satisfy the judgment
and lawful fees, he must sell only so much of the personal or real property as is sufficient to
satisfy the judgment and lawful fees.

Real property, stocks, shares, debts, credits, and other personal property, or any interest in
either real or personal property, may be levied upon in like manner and with like effect as under
a writ of attachment.

(c) Garnishment of debts and credits. The officer may levy on debts due the judgment
obligor and other credits, including bank deposits, financial interests, royalties, commissions
and other personal property not capable of manual delivery in the possession or control of third
parties. Levy shall be made by serving notice upon the person owing such debts or having in
his possession or control such credits to which the judgment obligor is entitled. The
garnishment shall cover only such amount as will satisfy the judgment and all lawful fees.

The garnishee shall make a written report to the court within five (5) days from service of the
notice of garnishment stating whether or not the judgment obligor has sufficient funds or
credits to satisfy the amount of the judgment. If not, the report shall state how much funds or
credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified
bank check issued in the name of the judgment obligee, shall be delivered directly to the
judgment obligee within ten (10) working days from service of notice on said garnishee
requiring such delivery, except the lawful fees which shall be paid directly to the court.

In the event there are two or more garnishees holding deposits or credits sufficient to satisfy
the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or
garnishees who shall be required to deliver the amount due; otherwise, the choice shall be
made by the judgment obligee.

The executing sheriff shall observe the same procedure under paragraph (a) with respect to
delivery of payment to the judgment obligee. (8a, 15a)

while Section 10 of the same Rule refers to execution of judgments for specific acts such as
conveyance, delivery of deeds or other specific acts vesting title; sale of real or personal property,
delivery or restitution of real property, removal of improvements on property subject of execution and
delivery of personal property.

The order directing the payment of rentals falls within the purview of Section 9 as quoted above. Until
and unless all the means provided for under Section 9, Rule 39 have been resorted to and failed,
imprisonment for contempt as a means of coercion for civil purposes cannot be resorted to by the
courts.36 In Sura vs. Martin, Sr.,37 we held that:

Where an order for the arrest and imprisonment of defendant for contempt of court (for failure
to satisfy a judgment for support on ground of insolvency) would, in effect, violate the
Constitution.
Thus, petitioners could not be held guilty of contempt of court for their continued refusal to comply
with the probate court's order to pay rentals to the administratrix nor could they be held guilty of
contempt for disobeying the writ of execution issued by the probate court, which directs therein the
Sheriff, thus:

Should lessees fail to pay the aforementioned amounts on rentals, then of the goods and
chattels of said lessees you may cause to be made the sum sufficient to cover the aforestated
amounts, but if no sufficient personal properties are found thereof to satisfy this execution,
then of the real properties you make the sums of money in the manner required by law and
make return of your proceeding under this writ within the reglementary period. 38

It was the sheriff's duty to enforce the writ.39

Under Section 9(b), Rule 39, of the Rules of Court, in cases when the execution calls for payment of
money and the obligor cannot pay all or part of the obligation in cash, certified bank check or other
mode or payment acceptable to the judgment obligee, the officer shall levy upon the properties of the
judgment obligor of every kind and nature whatsoever which may be disposed of for value and not
otherwise exempt from execution giving the latter the option to immediately choose which property or
part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not
exercise the option, the officer shall first levy on the personal properties, if any, and then on the real
properties if the personal properties are insufficient to answer for the judgment. The sheriff shall sell
only a sufficient portion of the personal or real property of the judgment obligor which has been levied
upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment
and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy
the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal
property, or any interest in either real or personal property, may be levied upon in like manner and
with like effect as under a writ of attachment.

The writ of execution issued by the trial court in this case commanded its sheriff to collect from
petitioners the rentals due from the property, and should they fail to pay, from petitioners'
personal/real properties sufficient to cover the amounts sought to be collected. 40 It was not addressed
to petitioners. It pertained to the sheriff to whom the law entrusts the execution of judgments, 41 and it
was due to the latter's failure that the writ was not duly enforced.

In fine, the Court of Appeals committed a reversible error in affirming the Decision dated November
16, 2001 of the trial court.

WHEREFORE, finding the petition for review on certiorari to be with merit, the decision dated March
26, 2002 rendered by the Court of Appeals is REVERSED and SET ASIDE. Its Resolution dated
January 3, 2002 ordering the temporary release of petitioners is made permanent. The Warrant of
Arrest dated November 19, 2001 issued by the Regional Trial Court of Ormoc City (Branch 12) in Sp.
Proc. No. 3695-0 is DEEMED RECALLED.

No costs.

SO ORDERED.
G.R. Nos. 111294-95 September 7, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
WALTER NACIONAL alias "KA DENNIS," ABSALON MILLAMINA alias "KA ALVIN," EFREN
MUSA, RUDY LUCES, JAVIER MIRABETE alias "COMMANDER," and ZACARIAS MILITANTE
alias "CARE, " accused.

JAVIER MIRABETE alias "COMMANDER," accused-appellant.

PUNO, J.:

This is an appeal from the decision of the Regional Trial Court, Branch 9, Legazpi City in Criminal
Cases Nos. 4854-4855.

On December 18, 1989, Walter Nacional alias "Ka Dennis," Absalon Millamina alias "Ka Alvin," Efren
Musa, Rudy Luces, Javier Mirabetealias "Commander, " and Zacarias Militante alias "Care" were
charged with murder in two separate informations. The first information reads as follows:

That on or about the 21st day of February 1985 at Brgy. Salvacion, Municipality of
Daraga, Province of Albay, Philippines, and within the jurisdiction of this Honorable
Court , the above-named accused, with intent to kill, conspiring, confederating and
helping one another, with evident premeditation and taking advantage of superior
strength, did then and there wilfully, unlawfully and feloniously shoot with a firearm one
QUIRINO LAGASON, inflicting upon the latter injuries resulting to his death, to the
damage and prejudice of his immediate heirs. 1

The second information reads:

That on or about the 21st day of February 1985 at Brgy. Salvacion, Municipality of
Daraga, Province of Albay, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, conspiring, confederating and
helping one another, with evident premeditation and taking advantage of superior
strength, did then and there wilfully, unlawfully and feloniously shoot with a firearm one
JOEL LAGASON, inflicting upon the latter injuries, resulting to his death, to the damage
and prejudice of his immediate heirs. 2

When arraigned, all the accused, except Absalon Millamina who was at large, pleaded "not guilty."
The two informations were later consolidated and assigned to the Regional Trial Court, Branch 9,
Legazpi City. 3 Trial thereafter ensued.

On May 31, 1993, the trial court rendered a decision finding the accused (except Millamina) guilty of
two counts of murder qualified by evident premeditation and attended by a conspiracy. The dispositive
portion of the decision reads as follows:
 WHEREFORE, having been convinced beyond reasonable doubt of the guilt of the
accused, Walter Nacional, Efren Musa, Rudy Luces, Javier Mirabete and Zacarias
Militante of the crime of Murder in both of the above-entitled cases, judgment is hereby
rendered:

In Criminal Case No. 4854:

1. Sentencing each of the above-mentioned accused to undergo the

penalty of Reclusion Perpetua;

2. To indemnify the heirs of the deceased the sum of P50,000.00; and

3. To pay the costs.

In Criminal Case No. 4855:

1. Sentencing each of the above-named accused to undergo the penalty

of Reclusion Perpetua;

2. To indemnify the heirs of the victim the sum of P50,000.00; and

3. To pay the costs. 4

All five (5) accused appealed to this Court. We accepted their appeal in a Resolution dated November
8, 1993. 5

On March 1, 1994, Walter Nacional, Zacarias Militante and Efren Musa, through counsel, moved to
withdraw their appeal. They claimed that the charges against them were political in nature "committed
while they were members of the New People's Army (NPA). 6 They informed the Court that as political
prisoners, they applied for and were recommended by then Secretary of Justice Franklin M. Drilon for
conditional pardon by the President of the Philippines. 7 The Court granted their motion on May 11,
1994. 8

On February 1, 1995, Rudy Luces, through counsel, also moved to withdraw his appeal for becoming
moot and academic. 9 He claimed that he had been granted conditional pardon by the President of the
Philippines and had been released from prison per instruction. In its Comment, the Office of the
Solicitor General opined that Rudy Luces abandoned his appeal when he accepted the pardon
granted him. We now therefore dismiss his appeal.

With these developments, only accused Javier Mirabete has remained and pursued his appeal to this
Court.

The judgment convicting the five accused is based on the evidence presented by the prosecution. It is
derived mainly from the testimonies of two eyewitnesses Bienvenida Lagason, Quirino's widow
and Joel's mother, and Crisanto Miranda, a neighbor of the Lagasons and accused Walter
Nacional.
The findings of the trial court as supported by the evidence are summarized as follows:

The six (6) accused, including accused-appellant, were all civilian members of the barangay
organization of the Communist Party of the Philippines (CPP) NPA at Daraga, Albay. 10 A few days
before February 21, 1985, their organization had a pulong-pulong (conference) at Barangay Lacag,
Daraga for the purpose of identifying suspected informers of the military whom they perceived as
posing a threat to the NPA's operations within the vicinity. They identified Quirino and Joel Lagason,
both residents of Barangay Salvacion, Daraga as military informants and were targeted for liquidation.
Elevino Rincopan, their team leader, however, disapproved the proposal for lack of clearance and
approval from the higher NPA authorities. 11

On February 21, 1985, at 4:00 p.m., the six (6) accused and Wilson Lita alias "Ka Cris" were gathered
in front of the RCPI building at Lacag, Daraga. Wilson Lita informed them that they were to go on a
mission at Salvacion, Daraga to talk to two (2) military informers, Quirino and Joel Lagason. Some
members of the group were to confront the two about their being informers and if they "resisted" they
were to be killed.12 The others were instructed to provide maximum security during the
confrontation. 13 Wilson Lita and Absalon Millamina were each armed with a short firearm and the
whole group left Lacag at 4:30 p.m. and walked towards Salvacion, four kilometers away. 14

At about 5:00 p.m., the group stopped at the sari-sari store of Genita Miranda and asked Genita for
directions to the house of Quirino and Joel Lagason. 15 They continued walking and passed by a
waiting shed where they met Crisanto Miranda. They requested Crisanto to accompany them to the
Lagason's house. Wilson Lita, Zacarias Militante and accused-appellant remained at the waiting shed
and the rest of the group proceeded on their mission. 16

Along the way, the group saw two men walking on the road whom Crisanto identified as Quirino and
Joel Lagason. Rudy Luces told Crisanto to leave but the latter did not. Walter Nacional approached
Quirino and said something to him. Walter then pulled out a gun from his waist and shot Quirino in the
face, hitting him between the eyebrows. Quirino fell to the ground and died instantly. A few seconds
later, Absalon Millamina shot Joel Lagason on the head. The group then fled towards the direction of
the RCPI Relay Station. Joel's mother, who was at the scene of the crime, rushed him to the hospital
where he died a few hours later. 17

The defense set up by the accused consisted of denials. Walter Nacional claimed that Quirino was
killed by Wilson Lita alias "Ka Cris" while Joel was allegedly shot by Absalon Millamina. 18 He further
averred that he and the other accused merely provided security to Absalon Millamina and Wilson Lita
who later on was reportedly killed in an encounter with the military. 19 Rudy Luces, Zacarias Militante,
Efren Musa and Javier Mirabete denied being members of the NPA. They denied any participation in
the killings. They declared that their presence in the vicinity of the crime was merely incidental. Rudy
Luces testified that he merely showed Wilson Lita and Absalon Millamina the way to the Lagasons'
house. 20 Zacarias Militante claimed that he gave the two the directions to the RCPI building. 21 Efren
Musa alleged that he gave a glass of water to Wilson Lita and Absalon Millamina who were passing
by his house. 22 Javier Mirabete testified that he was watching a volleyball game near the scene of the
crime when the shooting happened. 23

The trial court rejected the denials of the accused and convicted them.
In this appeal, accused-appellant Javier Mirabete insists on his claim that he was merely watching a
volleyball game when the shooting happened. 24 He denies being a member of the NPA or any rebel
organization. He likewise denies the existence of a plot and a conspiracy to kill the Lagasons.
Accused-appellant claims that he is a mere farmer, already 69 years old and had barely finished Third
Grade in school. According to him, his advanced age made it impossible for him join the NPA at the
time of the incident. He contends that the testimonies of Bienvenida Lagason and Crisanto Miranda
identifying him with the group that killed the Lagasons are unreliable and hearsay because both
witnesses never knew him. It was only four years after the shooting that Crisanto Miranda purportedly
learned of the members' identities and revealed the same to Bienvenida. 25

Reviewing the records, we find that accused-appellant was part of the group that conspired to kill and
actually killed the Lagasons. The identification of accused-appellant was made not only by
Bienvenida Lagason and Crisanto Miranda but by other witnesses as well, including prosecution
witnesses Elevino Rincopan, Genita Miranda, and appellant's co-accused Walter Nacional himself.

Elevino Rincopan, a former CPP-NPA team leader at Daraga, Albay identified accused-appellant as
one of the civilian members of their barangay organization. Elevino testified that accused-appellant
was present at the pulong-pulong before February 21, 1985 where the Lagasons were identified and
proposed to be liquidated. 26 The fact that Elevino Rincopan alias "Ka Boy" was the NPA team leader
at Daraga, Albay was corroborated by Walter Nacional himself. 27 Walter Nacional likewise identified
accused-appellant as present at the meeting on February 21, 1985 at 4:00 p.m. in front of the RCPI
building at Lacag, Daraga. It was at this meeting that the group was instructed by Wilson Lita alias
"Ka Cris" to seek out the Lagasons and shoot them. 28 Later, Genita Miranda, who was tending her
sari-sari store recognized and identified accused-appellant as part of the group that passed by her
store and asked her for directions to the victims' house. 29

Accused-appellant was also identified by Crisanto Miranda who testified that he recognized all of the
accused when they approached him at the waiting shed. 30 Crisanto explained that he recognized
them because they all came from neighboring barangays. 31 In fact, Crisanto was able to clearly
identify and distinguish three of the group who remained at the waiting shed and the rest whom he
accompanied in their search of the Lagasons.32 His credibility is not adversely affected by the fact that
he did not reveal their identities to the authorities immediately after the shooting. He averred that
Efren Musa threatened him to remain silent. For fear of his life, Crisanto fled to Manila. 33 He stayed in
almost two years and returned to Daraga, Albay after some time. 34 It was only in 1989 that Crisanto
revealed to Bienvenida Lagason the identities of her husband's and son's assailants, and voluntarily
gave his statement to the police. 35

Clearly, the evidence proves beyond doubt that accused-appellant was a civilian member of the CPP-
NPA at Daraga, and was part of the group of CPP-NPA members that deliberately planned the killing
of the Lagasons.

The events that led to the victims' deaths also show that this group of CPP-NPA members deliberately
planned, plotted and premeditated their victims' deaths.
Evident premeditation exists when the execution of the criminal act is preceded by cool thought and
reflection upon the resolution to carry out the criminal intent. There must be, between the reflection
and execution of the crime, a space of time sufficient for the offender to arrive at a calm judgment. 36

Indeed, there was more than sufficient time for the group to reflect on their criminal intentions
between the decision to shoot the victims and the actual shooting itself. At the pulong-pulong a few
days before February 21, 1995, the Lagasons were identified as military informers and the idea of
killing them was openly suggested. On February 21, 1985, all the accused were gathered at one
place where the decision to kill the Lagasons was made. The group planned the execution of the
crimes, assigned the participation of each member, and armed two of them. The group thereafter
deliberately and intentionally searched for the victims and more than an hour later, shot them as
planned.

We also hold that the prosecution has clearly and convincingly established the existence of a
conspiracy in the planning and execution of the crimes. Conspiracy arises at the very instant the
plotters agree, expressly or impliedly to commit the felony and forthwith to actually pursue it. 37

The conspiracy in the instant case was established at the meeting of February 25, 1985 at 4:00 p.m.
Apparently, nobody disagreed with the plan to shoot the victims because immediately after the
meeting, all the accused and Wilson Lita were seen walking as a group towards Barangay Salvacion.
When they saw their intended victims, they shot them and fled towards the RCPI building. Even those
left at the waiting shed likewise fled towards the same direction. Clearly, the shooting of the Lagasons
was characterized by a unity of purpose, intention and design. 38

It hardly matters that accused-appellant was not actually present at the specific place of the shooting.
He was at the waiting shed but this was for the purpose of providing security to those who carried out
the shooting. The waiting shed was located along the way to the Lagasons' house, strategically at the
entrance to and exit from it. 39

A conspiracy, once established, makes each of the conspirators liable for the acts of the others. 40 All
conspirators are liable as co-principals regardless of the extent of their participation because in
contemplation of law, the act of one is the act of all. 41

We also agree with the trial court that the aggravating circumstance of abuse of superior strength
cannot be appreciated against the appellant. Mere superiority in number does not prove abuse of
superior strength. 42

We likewise find no mitigating circumstance in the commission of the crimes. The analogous
circumstance of age of over 70 years cannot be considered mitigating because accused-appellant
was only 59 years old at the time of the commission of the offense.

Since there is no mitigating nor generic aggravating circumstance, the penalty of reclusion
perpetua was correctly imposed by the trial court against the accused-appellant.

Finally, we rule that the grant of conditional pardon and the consequent dismissal of the appeals of
Walter Nacional, Zacarias Militante, Efren Musa and Rudy Luces does not exempt them from
payment of the civil indemnity. A conditional pardon, when granted, does not extinguish the civil
liability arising from the crime. 43 The indemnity of P50,000.00 imposed by the trial court for each of
the deaths of Quirino and Joel Lagason must be shared solidarily by all the accused.

IN VIEW WHEREOF, the decision appealed from is hereby AFFIRMED insofar as the criminal liability
of accused-appellant Javier Mirabete is concerned, and insofar as the civil liability of all the accused
in Criminal Cases Nos. 4854-4855.

SO ORDERED.

G.R. No. 113213 August 15, 1994

PAUL JOSEPH WRIGHT, petitioner,

vs.
HON. COURT OF APPEALS, HON. JUDGE JOSE DE LA RAMA, RTC, BRANCH 139, MAKATI,
M.M. and HON. FRANK DRILON, SECRETARY OF JUSTICE, respondents.

Rodrigo E. Mallari for petitioner.

Aurora Salva Bautista collaborating for petitioner.

KAPUNAN, J.:

A paramount principle of the law of extradition provides that a State may not surrender any individual
for any offense not included in a treaty of extradition. This principle arises from the reality of
extradition as a derogation of sovereignty. Extradition is an intrusion into the territorial integrity of the
host State and a delimitation of the sovereign power of the State within its own territory. 1 The act of
extraditing amounts to a "delivery by the State of a person accused or convicted of a crime, to
another State within whose territorial jurisdiction, actual or constructive, it was committed and which
asks for his surrender with a view to execute justice." 2 As it is an act of "surrender" of an individual
found in a sovereign State to another State which demands his surrender 3, an act of extradition, even
with a treaty rendered executory upon ratification by appropriate authorities, does not imposed an
obligation to extradite on the requested State until the latter has made its own determination of the
validity of the requesting State's demand, in accordance with the requested State's own interests.

The principles of international law recognize no right of extradition apart from that arising from
treaty. 4 Pursuant to these principles, States enter into treaties of extradition principally for the
purpose of bringing fugitives of justice within the ambit of their laws, under conventions recognizing
the right of nations to mutually agree to surrender individuals within their jurisdiction and control, and
for the purpose of enforcing their respective municipal laws. Since punishment of fugitive criminals is
dependent mainly on the willingness of host State to apprehend them and revert them to the State
where their offenses were committed, 5 jurisdiction over such fugitives and subsequent enforcement
of penal laws can be effectively accomplished only by agreement between States through treaties of
extradition.
Desiring to make more effective cooperation between Australia and the Government of the
Philippines in the suppression of crime, 6 the two countries entered into a Treaty of Extradition on the
7th of March 1988. The said treaty was ratified in accordance with the provisions of Section 21, Article
VII of the 1987 Constitution in a Resolution adopted by the Senate on September 10, 1990 and
became effective thirty (30) days after both States notified each other in writing that the respective
requirements for the entry into force of the Treaty have been complied with. 7

The Treaty adopts a "non-list, double criminality approach" which provides for broader coverage of
extraditable offenses between the two countries and (which) embraces crimes punishable by
imprisonment for at least one (1) year. Additionally, the Treaty allows extradition for crimes committed
prior to the treaty's date of effectivity, provided that these crimes were in the statute books of the
requesting State at the time of their commission.

Under the Treaty, each contracting State agrees to extradite. . . "persons

. . . wanted for prosecution of the imposition or enforcement of a sentence in the Requesting State for
an extraditable offense." 8 A request for extradition requires, if the person is accused of an offense,
the furnishing by the requesting State of either a warrant for the arrest or a copy of the warrant of
arrest of the person, or, where appropriate, a copy of the relevant charge against the person sought
to be extradited. 9

In defining the extraditable offenses, the Treaty includes all offenses "punishable under the Laws of
both Contracting States by imprisonment for a period of at least one (1) year, or by a more severe
penalty." 10 For the purpose of the definition, the Treaty states that:

(a) an offense shall be an extraditable offense whether or not the laws of the
Contracting States place the offense within the same category or denominate the
offense by the same terminology;

(b) the totality of the acts or omissions alleged against the person whose extradition is
requested shall be taken into account in determining the constituent elements of the
offense. 11

Petitioner, an Australian Citizen, was sought by Australian authorities for indictable crimes in his
country. Extradition proceedings were filed before the Regional Trial Court of Makati, which rendered
a decision ordering the deportation of petitioner. Said decision was sustained by the Court of Appeals;
hence, petitioner came to this Court by way of review on certiorari, to set aside the order of
deportation. Petitioner contends that the provision of the Treaty giving retroactive effect to the
extradition treaty amounts to an ex post facto law which violates Section 21 of Article VI of the
Constitution. He assails the trial court's decision ordering his extradition, arguing that the evidence
adduced in the court below failed to show that he is wanted for prosecution in his country. Capsulized,
all the principal issues raised by the petitioner before this Court strike at the validity of the extradition
proceedings instituted by the government against him.

12
The facts, as found by the Court of Appeals, are undisputed:
On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the Department of Foreign
Affairs indorsed to the Department of Justice Diplomatic Note No. 080/93 dated
February 19, 1993 from the Government of Australia to the Department of Justice
through Attorney General Michael Duffy. Said Diplomatic Note was a formal request for
the extradition of Petitioner Paul Joseph Wright who is wanted for the following
indictable crimes:

1. Wright/Orr Matter one count of Obtaining Property by Deception contrary to

Section 81(1) of the Victorian Crimes Act of 1958; and

2. Wright/Cracker Matter Thirteen (13) counts of Obtaining Properties by Deception

contrary to Section 81(1) of the Victorian Crimes Act of 1958; one count of attempting to
Obtain Property by Deception contrary to Section 321(m) of Victorian Crimes Act of
1958; and one count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958,
which crimes were allegedly committed in the following manner:

The one (1) count of Obtaining Property by Deception contrary to Section

81 (1) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's and
co-offender, Herbert Lance Orr's, dishonesty in obtaining $315,250 from
Mulcahy, Mendelson and Round Solicitors (MM7R), secured by a
mortgage on the property in Bangholme, Victoria owned by Ruven
Nominees Pty. Ltd., a company controlled by a Rodney and a Mitchell, by
falsely representing that all the relevant legal documents relating to the
mortgage had been signed by Rodney and Janine Mitchell.

The thirteen (13) counts of Obtaining Property by Deception contrary to

Section 81(1) of the Victorian Crimes Act of 1958 constitutes in Mr.
Wright's and co-offender Mr. John Carson Craker's receiving a total of
approximately 11.2 in commission (including $367,044 in bonus
commission) via Amazon Bond Pty. Ltd., depending on the volume of
business written, by submitting two hundred fifteen (215) life insurance
proposals, and paying premiums thereon (to the acceptance of the
policies and payment of commissions) to the Australian Mutual Provident
(AMP) Society through the Office of Melbourne Mutual Insurance, of which
respondent is an insurance agent, out of which life proposals none are in
existence and approximately 200 of which are alleged to have been false,
in one or more of the following ways:

( i ) some policy-holders signed up only because they were told the

policies were free (usually for 2 years) and no payments were required.

(ii) some policy-holders were offered cash inducements ($50 or $100) to

sign and had to supply a bank account no longer used (at which a direct
debit request for payment of premiums would apply). These policy-holders
were also told no payments by them were required.
 (iii) some policy-holders were introduced through the "Daily Personnel
Agency", and again were told the policies were free for 2 years as long as
an unused bank account was applied.

(iv) some policy-holders were found not to exist.

The one count of Attempting to Obtain Property by Deception contrary to

Section 321(m) of the Victorian Crimes Act of 1958 constitutes in Mr.
Wright's and Mr. Craker's attempting to cause the payment of $2,870.68
commission to a bank account in the name of Amazon Bond Pty. Ltd. by
submitting one proposal for Life Insurance to the AMP Society, the policy-
holder of which does not exist with the end in view of paying the premiums
thereon to insure acceptance of the policy and commission payments.

The one count of Perjury contrary to Section 314 of Victorian Crimes Act
of 1958 constitutes in Mr. Wright's and Mr. Craker's signing and swearing
before a Solicitor holding a current practicing certificate pursuant to the
Legal Profession Practice Act (1958), a Statutory Declaration attesting to
the validity of 29 of the most recent Life Insurance proposals of AMP
Society and containing three (3) false statements.

Pursuant to Section 5 of PD No. 1069, in relation to the Extradition Treaty concluded

between the Republic of the Philippines and Australia on September 10, 1990,
extradition proceedings were initiated on April 6, 1993 by the State Counsels of the
Department of Justice before the respondent court.

In its Order dated April 13, 1993, the respondent court directed the petitioner to appear
before it on April 30, 1993 and to file his answer within ten days. In the same order, the
respondent Judge ordered the NBI to serve summons and cause the arrest of the
petitioner.

The respondent court received return of the warrant of arrest and summons signed by
NBI Senior Agent Manuel Almendras with the information that the petitioner was
arrested on April 26, 1993 at Taguig, Metro Manila and was subsequently detained at
the NBI detention cell where petitioner, to date, continue to be held.

Thereafter, the petitioner filed his answer.

In the course of the trial, the petitioner testified that he was jobless, married to a Filipina,
Judith David, with whom he begot a child; that he has no case in Australia; that he is not
a fugitive from justice and is not aware of the offenses charged against him; that he
arrived in the Philippines on February 25, 1990 returned to Australia on March 1, 1990,
then back to the Philippines on April 11, 1990, left the Philippines again on April 24,
1990 for Australia and returned to the Philippines on May 24, 1990, again left for
Australia on May 29, 1990 passing by Singapore and then returned to the Philippines on
June 25, 1990 and from that time on, has not left the Philippines; and that his tourist
 visa has been extended but he could not produce the same in court as it was
misplaced, has neither produced any certification thereof, nor any temporary working
visa.

The trial court, in its decision dated 14 June 1993, granting the petition for extradition requested by
the Government of Australia, concluding that the documents submitted by the Australian Government
meet the requirements of Article 7 of the Treaty of Extradition and that the offenses for which the
petitioner were sought in his country are extraditable offenses under Article 2 of the said Treaty. The
trial court, moreover, held that under the provisions of the same Article, extradition could be granted
irrespective of when the offense in relation to the extradition was committed, provided that the
offense happened to be an offense in the requesting State at the time the acts or omissions
constituting the same were committed. 13

Petitioner challenged the decision of the Regional Trial Court before the Court of Appeals assigning
the following errors:

I. THAT THE HONORABLE RESPONDENT JUDGE GRAVELY ERRED IN GIVING

RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY DESPITE
THE FACT THAT THE EVIDENCE ADDUCED BY THE RESPONDENT SHOW THAT
THE ALLEGED OFFENSES FOR WHICH PETITIONER IS SOUGHT TO BE
EXTRADITED TOOK PLACE IN 1988-1989 AT THE TIME THERE WAS NO
EXTRADITION TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND
AUSTRALIA.

II. THAT THE ACT OF THE HONORABLE RESPONDENT JUDGE IN GIVING

RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY BETWEEN
THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA AMOUNTS TO AN "EX
POST FACTO LAW" AND VIOLATES SECTION 21, ARTICLE VII OF THE 1987
CONSTITUTION.

III. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE
EXTRADITION OF PETITIONER DESPITE THE FACT THAT THE EVIDENCE
ADDUCED DO NOT SHOW THAT PETITIONER IS WANTED FOR PROSECUTION IN
AUSTRALIA.

IV. THAT THE HON. RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION,
AMOUNTING TO LACK OF JURISDICTION, IN MISINTERPRETING THE EXTENDED
STAY OF PETITIONER AS EVIDENCE OF PETITIONER'S DESIGN TO HIDE AND
EVADE PROSECUTION IN AUSTRALIA.

V. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE

EXTRADITION OF PETITIONER WITHOUT SPECIFYING IN HIS ORDER OR
DECISION THE SPECIFIC CHARGES FOR WHICH PETITIONER IS TO STAND
TRIAL IN AUSTRALIA.
The Court of Appeals affirmed the trial court's decision on September 14, 1993 and denied
petitioner's Motion for Reconsideration on December 16, 1993. 14 Reiterating substantially the same
assignments of error which he interposed in the Court of Appeals, petitioner challenges in this petition
the validity of the extradition order issued by the trial court as affirmed by the Court of Appeals under
the Treaty. Petitioner vigorously argues that the trial court order violates the Constitutional prohibition
against ex post facto laws. He avers that for the extradition order to be valid, the Australian
government should show that he "has a criminal case pending before a competent court" in that
country "which can legally pass judgement or acquittal or conviction upon him."

Clearly, a close reading of the provisions of the Treaty previously cited, which are relevant to our
determination of the validity of the extradition order, reveals that the trial court committed no error in
ordering the petitioner's extradition. Conformably with Article 2, Section 2 of the said Treaty, the
crimes for which the petitioner was charged and for which warrants for his arrest were issued in
Australia were undeniably offenses in the Requesting State at the time they were alleged to have
been committed. From its examination of the charges against the petitioner, the trial court correctly
determined that the corresponding offenses under our penal laws are Articles 315(2) and 183 of the
Revised Penal Code on swindling/estafa and false testimony/perjury, respectively. 15

The provisions of Article 6 of the said Treaty pertaining to the documents required for extradition are
sufficiently clear and require no interpretation. The warrant for the arrest of an individual or a copy
thereof, a statement of each and every offense and a statement of the acts and omissions which were
alleged against the person in respect of each offense are sufficient to show that a person is wanted
for prosecution under the said article. All of these documentary requirements were dully submitted to
the trial court in its proceedings a quo. For purposes of the compliance with the provisions of the
Treaty, the signature and official seal of the Attorney-General of Australia were sufficient to
authenticate all the documents annexed to the Statement of the Acts and Omissions, including the
statement itself. 16 In conformity with the provisions of Article 7 of the Treaty, the appropriate
documents and annexes were signed by "an officer in or of the Requesting State" 17 "sealed with . . .
(a) public seal of the Requesting State or of a Minister of State, or of a Department or officer of the
Government of the Requesting State," 18 and "certified by a diplomatic or consular officer of the
Requesting State accredited to the Requested State." 19 The last requirement was accomplished by
the certification made by the Philippine Consular Officer in Canberra, Australia.

The petitioner's contention that a person sought to be extradited should have a "criminal case
pending before a competent court in the Requesting State which can legally pass judgement of
acquittal or conviction" 20 stretches the meaning of the phrase "wanted for prosecution" beyond the
intended by the treaty provisions because the relevant provisions merely require "a warrant for the
arrest or a copy of the warrant for the arrest of the person sought to be extradited." 21 Furthermore,
the 'Charge and Warrant of Arrest Sheets' attest to the fact that petitioner is not only wanted for
prosecution but has, in fact, absconded to evade arrest and criminal prosecution. Since a charge or
information under the Treaty is required only when appropriate, i.e., in cases where an individual
charged before a competent court in the Requesting State thereafter absconds to the Requested
State, a charge or a copy thereof is not required if the offender has in fact already absconded before
a criminal complaint could be filed. As the Court of Appeals correctly noted, limiting the phrase
"wanted for prosecution" to person charged with an information or a criminal complaint renders the
Treaty ineffective over individuals who abscond for the purpose of evading arrest and prosecution. 22

This brings us to another point raised by the petitioner both in the trial court and in the Court of
Appeals. May the extradition of the petitioner who is wanted for prosecution by the government of
Australia be granted in spite of the fact that the offenses for which the petitioner is sought in his
country were allegedly committed prior to the date of effectivity of the Treaty.

Petitioner takes the position that under Article 18 of the Treaty its enforcement cannot be given
retroactive effect. Article 18 states:

ENTRY INTO FORCE AND TERMINATION

This Treaty shall enter into force thirty (30) days after the date on which the Contracting
States have notified each other in writing that their respective requirements for the entry
into force of this Treaty have been complied with.

Either contracting State may terminate this Treaty by notice in writing at any time and it
shall cease to be in force on the one hundred and eightieth day after the day on which
notice is given.

We fail to see how the petitioner can infer a prohibition against retroactive enforcement from this
provision. The first paragraph of Article 18 refers to the Treaty's date of effectivity; the second
paragraph pertains to its termination. Absolutely nothing in the said provision relates to, much less,
prohibits retroactive enforcement of the Treaty.

On the other hand, Article 2(4) of the Treaty unequivocally provides that:

4. Extradition may be granted pursuant to provisions of this Treaty irrespective of when

the offense in relation to which extradition is requested was committed, provided that:

(a) it was an offense in the Requesting State at the time of the acts or omissions
constituting the offense; and

(b) the acts or omissions alleged would, if they had taken place in the Territory of the
Requested State at the time of the making of the request for extradition, have
constituted an offense against the laws in force in that state.

Thus, the offenses for which petitioner is sought by his government are clearly extraditable under
Article 2 of the Treaty. They were offenses in the Requesting State at the time they were committed,
and, irrespective of the time they were committed, they fall under the panoply of the Extradition
Treaty's provisions, specifically, Article 2 paragraph 4, quoted above.

Does the Treaty's retroactive application violate the Constitutional prohibition against ex post facto
laws? Early commentators understood ex post facto laws to include all laws of retrospective
application, whether civil or criminal. 23 However, Chief Justice Salmon P. Chase, citing Blackstone,
The Federalist and other early U.S. state constitutions in Calder vs. Bull 24 concluded that the concept
was limited only to penal and criminal statutes. As conceived under our Constitution, ex post
facto laws are 1) statutes that make an act punishable as a crime when such act was not an offense
when committed; 2) laws which, while not creating new offenses, aggravate the seriousness of a
crime; 3) statutes which prescribes greater punishment for a crime already committed; or, 4) laws
which alter the rules of evidence so as to make it substantially easier to convict a
defendant. 25"Applying the constitutional principle, the (Court) has held that the prohibition applies
only to criminal legislation which affects the substantial rights of the accused." 26 This being so, there
is no absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the
Treaty's retroactive application with respect to offenses committed prior to the Treaty's coming into
force and effect, violates the Constitutional prohibition against ex post facto laws. As the Court of
Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a criminal
procedural statute. "It merely provides for the extradition of persons wanted for prosecution of an
offense or a crime which offense or crime was already committed or consummated at the time the
treaty was ratified." 27

In signing the Treaty, the government of the Philippines has determined that it is within its interests to
enter into agreement with the government of Australia regarding the repatriation of persons wanted
for criminal offenses in either country. The said Treaty was concurred and ratified by the Senate in a
Resolution dated September 10, 1990. Having been ratified in accordance with the provision of the
1987 Constitution, the Treaty took effect thirty days after the requirements for entry into force were
complied with by both governments.

WHEREFORE, finding no reversible error in the decision of respondent Court of Appeals, we hereby
AFFIRM the same and DENY the instant petition for lack of merit.

SO ORDERED.

Republic of the Philippines